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Friday, June 17, 2016

The 7th Circuit Court of Appeals recently
issued an opinion on a "resign-to-hold elected office" law passed by the Indiana
General Assembly in 2012. Claussen
v. Pence, 2016 WL 3213036.The law provides that “an
individual is considered to have resigned as a government employee when the
individual assumes an elected office of the unit that employs the individual.”
Indiana Code § 3-5-9-5. In this case, civil servants in Indiana who served on
both city and town councils filed a lawsuit claiming that the new Indiana law
violated their First Amendment and the Equal Protection rights. The State of Indiana and its Governor along
with the several members of the State Board of Accounts moved to dismiss the case, which was granted by the U.S. District Court of Northern
District of Indiana.

The elected officials appealed the
dismissa, but the 7th
Circuit Court of Appeals upheld the district court's decision. In their appeal, the elected officials contended that law
violated their right to municipal office by requiring them to resign from their
civil servant positions after winning an election. The 7th Circuit relied on a series of "resign-to-run" cases, which upheld laws that require public employees to resign
before running for election. Relying on those cases, the Court determined that
Indiana's law was constitutional and was actually more favorable to the candidates because it allowed them to run for election while still being
employed as civil servants.

The elected officials argued that
the law was a violation of their fundamental right to hold municipal office. The court rejected
this argument, ruling that holding a municipal office is not a fundamental
right, so Indiana only needed to establish that the law was rationally related to a
legitimate government purpose. Because the reasoning behind the law was to limit potential corruption
and self-dealing by elected officials by not allowing them to serve on city and
town councils that would oversee their civil servant positions, the court held that the slight burden placed on elected officials was outweighed by Indiana’s legitimate interest to avoid corruption and self
dealing.

The elected officials also argued that their rights to equal protection had been violated because they were treated differently than private
government contractors. The court also rejected this argument, stating that
plaintiffs were not a suspect class, and government contractors are subject to
extensive disclosure requirements to reduce the risk of self-dealing.
Since Indiana’s law was related
to preventing any actual or perceived corruption, the law again passed
constitutional muster.

Although this case interprets
Indiana law, Illinois has a similar ban on elected municipal officials holding any other municipal office in the same municipality where they hold elected
office (with a few identified exceptions):

(65 ILCS 5/3.1-15-15) (from Ch. 24, par.
3.1-15-15)

Sec. 3.1-15-15. Holding other offices. A
mayor, president, alderman, trustee, clerk, or treasurer shall not hold any
other office under the municipal government during the term of that office,
except when the officer is granted a leave of absence from that office or
except as otherwise provided in Sections 3.1-10-50, 3.1-35-135, and 8-2-9.1.
Moreover, an officer may serve as a volunteer fireman and receive compensation
for that service.